Employers should continue making preparations to be in compliance with the emergency temporary standard in line with its original deadlines.
A push to have employers of 100 or more workers implement vaccination-or-testing policies has come to a halt before ever getting started.
The Occupational Safety and Health Administration had planned on rolling out its emergency temporary standard requiring applicable employers by Dec. 5 to require masks for all unvaccinated employees working in-person, and to have them provide weekly negative COVID-19 tests, beginning Jan. 4, 2022.
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But the federal agency has now announced plans to suspend all implementation and enforcement efforts related to the workplace vaccination-or-testing mandate.
'Unconstitutional mandate'
Georgia Attorney General Chris Carr tweeted about the suspension Wednesday, citing lawsuits filed against the OSHA standard, including one by Georgia.
"OSHA has suspended its enforcement of Biden's unlawful employer vaccine mandate following several lawsuits filed in circuits across the country, including Georgia's own suit filed in the 11th Circuit U.S. Court of Appeals," Carr tweeted. "The Biden administration never had the authority to impose this unconstitutional mandate in the first place. That's why we will continue to fight this federal overreach to protect Georgia businesses and their employees."
The Biden administration never had the authority to impose this unconstitutional mandate in the first place. That's why we will continue to fight this federal overreach to protect Georgia businesses and their employees.
— GA AG Chris Carr (@Georgia_AG) November 17, 2021
'Staying the rule'
But labor and employment attorney Brett Coburn of Alston & Bird in Atlanta cautioned against considering the suspension a victory.
"I do not view OSHA's announcement about suspending activities related to implementing and enforcing the [emergency temporary standard] as anything other than a public acknowledgment that it is complying with the Fifth Circuit's order staying the rule while the legal challenges are litigated," Coburn said. "I don't view it as OSHA backing away from the ETS."
On Nov. 6, the U.S. Court of Appeals for the Fifth Circuit in New Orleans issued a temporary stay blocking OSHA's pending vaccination-or-testing policy. Six days later, the federal appellate court announced an order staying enforcement of the emergency temporary standard pending a final ruling on its legality.
With OSHA intending to resume implementation and enforcement of the policy, if permitted, following "pending future developments in the litigation," Coburn advised that employers should continue making preparations to be in compliance with the emergency temporary standard in line with its original deadlines.
He said, "We do not know when the legal challenges will be resolved or what that outcome will be."
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Cedra Mayfield
Cedra Mayfield is a litigation reporter with the Daily Report, the ALM newspaper in Atlanta. She can be reached at [email protected]. Twitter: @cedramayfield
